President Biden declared on Friday that he believes that the Equal Rights Amendment has met the requirements of ratification and therefore is now part of the Constitution, but he declined to order the government to finalize the process by officially publishing it.
“In keeping with my oath and duty to Constitution and country, I affirm what I believe and what three-fourths of the states have ratified: The 28th Amendment is the law of the land, guaranteeing all Americans equal rights and protections under the law regardless of their sex,” Mr. Biden said in a statement.
Under the Constitution, however, the president has no direct role in approving amendments and his statement has no legal force by itself. The archivist of the United States, a Biden appointee, has refused to formally publish the amendment on the grounds that it has not met the requirements to become part of the Constitution.
Aides said that Mr. Biden was not ordering the archivist, Colleen Shogan, to reverse her position and publish the amendment, as advocates have urged him to do. Asked for comment on Friday, the archivist’s office referred back to previous statements refusing to publish the amendment, indicating that she would not change her stance.
Even so, advocates maintained that Mr. Biden’s imprimatur gives the amendment additional credibility for any future court battle over whether it actually has the force of law. In effect, Mr. Biden and his allies are daring opponents to go to court to argue that women do not have equal rights.
Mr. Biden’s decision to weigh in just three days before he leaves office on an issue that has divided the country for generations amounted to a late effort to bring about profound change and shape his own legacy, but without taking actual action.
The Equal Rights Amendment was first proposed more than a century ago and has taken a circuitous route to ratification. It easily passed both houses of Congress with the required two-thirds votes in 1972 and over the next few years was ratified by most states. But it fell short of the three-quarters of states required under the Constitution until January 2020 when Virginia became the 38th state to ratify it.
Opponents have argued that a seven-year deadline imposed by Congress (and later extended by another three years) meant that the ratification was not completed in time, while proponents maintain the deadline was invalid. Moreover, several states that originally ratified have tried to rescind their approval, adding another point of legal uncertainty to the situation.
The amendment itself, originally written by the women’s rights activist Alice Paul in 1923 and later modified, essentially is a single sentence: “Equality of rights under the law shall not be denied or abridged by the United States or by any state on account of sex.” The rest of the amendment simply says that Congress can pass legislation to enforce it and that it would go into effect two years after ratification.
While the text of the amendment seems relatively straightforward on its face at a time when federal law already prohibits sex discrimination, in fact it has long been an explosive issue. Advocates argue that such a bedrock principle should be explicitly built into the Constitution, not just statutory law, while critics contend it would have far-reaching consequences on everything from abortion rights to a military draft for women.
Democrats have been pressing Mr. Biden to order the archivist to publish the amendment. Last month, Dr. Shogan and her deputy, William J. Bosanko, issued a statement saying that the Equal Rights Amendment “cannot be certified as part of the Constitution due to established legal, judicial and procedural decisions.”
Dr. Shogan and Mr. Bosanko cited various court decisions and memos from the Justice Department in concluding that they “cannot legally publish the Equal Rights Amendment.”
But former Senator Russ Feingold, Democrat of Wisconsin and president of the American Constitution Society, a progressive advocacy group, who has been among those pushing for the archivist to publish the amendment, said Mr. Biden’s statement was meaningful even if she does not.
“It’s completely historic to have the president of the United States say it’s already in the Constitution,” Mr. Feingold said in an interview. “I believe and many believe that whether or not the archivist certifies it or not doesn’t matter.”
That represents a turnabout more than two years after saying that it did matter and advancing the strategy of pressing the archivist to publish it as a way to finally declare the amendment part of the Constitution. Now, Mr. Feingold said, the archivist’s role is “merely ministerial” and the president’s opinion is more meaningful.
“For the president to recognize it as a matter of law is something we’ve been working on for years,” he said. “It is a significant moment after 100 years.”
